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UNITED STATES v. SMITH

April 5, 1976

UNITED STATES OF AMERICA
v.
CHARLES F. G. SMITH, et al. CHARLES F. G. SMITH, Movant



The opinion of the court was delivered by: BECHTLE

BECHTLE, J.

 Defendant Charles F. G. Smith was charged in a two-count indictment with conspiracy to smuggle Mexican gold coins into the United States and conspiracy to traffic in counterfeit obligations of the United States, both in violation of 18 U.S.C. § 371. After a jury trial, Smith was found guilty as to both counts. Presently before the Court are Smith's motions for arrest of judgment *fn1" or, in the alternative, for a new trial. Smith moves for a new trial on the grounds that the Court: (1) failed to instruct the jury as to his theory of the defense; (2) failed to make a fair and impartial summary of the evidence in its charge to the jury; (3) abused its discretion by permitting the jury to have possession of the indictment during deliberations; and (4) improperly permitted a rebuttal by the Government during closing arguments despite the fact that Smith did not present a defense. For the reasons set forth below, the motions will be denied.

 Only a brief synopsis of the facts is necessary to understand the issues raised herein. The evidence showed that on February 12, 1975, coconspirators Gene Harrow and Mario Papini *fn2" met with Mitchell Berger, a Government informant, at a diner located in Philadelphia. Papini mentioned the possibility of a deal whereby approximately 4900 Mexican gold coins could be purchased from two Mexican brothers, Juan and Armando Perez. At that time, the coins were physically located in Mexico. After that meeting, Berger contacted Dale Larson, a United States Secret Service agent, informing Larson of his meeting with Papini and Harrow and of the possibility that the proposed deal might in some way be illegal. Thereafter, Smith contacted Berger to inform him that the coins were still available and to set up a meeting for February 24, 1975, at the George Washington Motor Lodge located just outside the City of Philadelphia. At that meeting, Berger introduced Agent Larson to Smith, Harrow and Papini as Dale Bittel, an interested prospective buyer of the gold coins. The plan, as developed in that meeting and two subsequent meetings held on February 28 and March 4, 1975, as well as in numerous telephone conversations, was as follows: Larson was to purchase from Juan and Armando Perez, as arranged by Smith, Harrow and Papini, approximately 6900 Mexican gold coins and $500,000 in counterfeit obligations. The coins and counterfeit money were to be shipped in a large crate marked "furniture" from Mexico, through various Caribbean or Mediterranean ports, and into the United States. This method of shipment was designed to avoid customs inspection upon arrival in this country. Delivery was to be made on March 8, 1975, at a parking lot located at the corner of Routes 1 and 320 in Springfield, Delaware County, Pennsylvania. For reasons that are not entirely clear, nor particularly crucial, the coins and counterfeit money were never delivered and the deal was never consummated.

 1. Theory of the defense.

 A defendant in a criminal case is entitled to have the jury instructed on any theory of defense for which there is any foundation in the evidence, however tenuous. United States v. Hillsman, 522 F.2d 454, 459 (7th Cir. 1975); United States v. Grant, 510 F.2d 137, 138-139 (5th Cir. 1975); United States v. Blair, 456 F.2d 514, 520 (3d Cir. 1972); United States v. Shewfelt, 455 F.2d 836 (9th Cir.), cert. denied, 406 U.S. 944, 32 L. Ed. 2d 331, 92 S. Ct. 2042 (1972). The defendant need not testify or offer evidence or witnesses as a prerequisite to a court's instructing as to a theory of defense. Indeed, the foundation may rest upon evidence elicited from Government witnesses, either on direct or on cross-examination. See United States v. Vole, 435 F.2d 774 (7th Cir. 1970); United States v. Phillips, 217 F.2d 435 (7th Cir. 1955). However, such an instruction need not be given if it is completely devoid of evidentiary support or is based upon mere speculation. United States v. Waskow, 519 F.2d 1345, 1347 (8th Cir. 1975); United States v. Grant, supra, 510 F.2d at 139; United States v. Blair, supra, 456 F.2d at 520.

 After a thorough examination of the record, the Court finds no foundation in the evidence to support Smith's "rip-off" theory of defense. The Court is not unmindful of the fact that Agent Larson testified, both on direct and cross-examination, of his concern about the possibility of being "ripped-off" by the Mexicans, Juan and Armando Perez. That testimony is subject to two different interpretations. One is that the Perezes never intended to smuggle the coins or counterfeit money into the country, but merely set up the scheme in order to "rip-off" the unsuspecting buyer, Agent Larson. The other is that they intended to smuggle the coins and counterfeit money into this country, using them as bait to steal the purchase money from Larson and actually sell them to someone else. Neither interpretation lends any support to Smith's theory that Papini and Harrow never intended to smuggle the coins and counterfeit money into the country. To have given an instruction to that effect would have been tantamount to instructing the jury on a theory of defense for which there was no foundation in the evidence, and would have distracted the jury from its important deliberating function of examining only the evidence by the interjection of idle speculation and frivolous considerations. See United States v. Blair, supra, 456 F.2d at 520. Accordingly, the motion for new trial on that ground will be denied.

 2. Improper summary of evidence.

 Smith contends that the Court failed to make a fair and impartial summary of the evidence in its charge to the jury. Specifically, he argues that the Court unduly highlighted the Government's evidence and ignored a great deal of evidence favorable to Smith, which was elicited on cross-examination of Government witnesses. In effect, he concludes, the Court's charge "presented the Government's final arguments."

 The standard against which a charge to a jury must be measured is contained in Quercia v. United States, 289 U.S. 466, 469, 77 L. Ed. 1321, 53 S. Ct. 698 (1933), wherein the Supreme Court stated:

 
In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination.

 A trial judge's power to make comments is not boundless, however, as he or she may not unfairly prejudice a defendant. United States v. Green, 373 F. Supp. 149, 159 (E.D.Pa.), aff'd mem., 505 F.2d 731 (3d Cir. 1974), cert. denied, 420 U.S. 978, 95 S. Ct. 1405, 43 L. Ed. 2d 659 (1975). See United States v. Gaines, 450 F.2d 186, 188-192 (3d Cir. 1971), cert. denied, 405 U.S. 927, 30 L. Ed. 2d 801, 92 S. Ct. 978 (1972).

 A review of the Court's charge reveals that the jury was fairly and adequately instructed. Although some comments touching upon the evidence and the Government's theory of the case were made by the Court, it was done with the requisite impartiality. The Court at all times remained well within the bounds of fair comment. More importantly, the jury was instructed that it was the sole determiner of the facts (N.T. 5-16, 5-37 to 5-38, 5-46) and of the credibility ...


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